Death Grip

[W]ith my left hand, I grabbed his hair to try to get him out from under the car. I pulled, he pulled back. I pulled him again. I got him out of the car . . . up to his shoulders. He pulled back again the third time; that's when I grabbed him with my right hand. I grabbed his hair and I pulled him back. I had him about halfway out. He pulled back, and that's when I heard a pop.From the deposition of police officer Jaime Palermo, April 19, 2001

[Police officer Lawrence] Ursitti stated that based on accidental discharge reports, which he has occasion to review as part of his duties, the most dangerous and accident-prone situations occur when an officer is in close contact with a suspect. In the close-combat course offered by his unit, officers are taught to beware of unholstering their weapon in close-contact situations because pulling on a suspect with the free hand produces a grip reflex in the gun hand to make a fist, creating a danger of accidental discharge.Josefina Martinez, NYPD assistant deputy commissioner of trials, after the departmental trial of police officer Jaime Palermo, July 6, 2000

Once again, the New York Police Department has proven that cops should not police cops. Once again, at a sham trial, the NYPD has come up with a shameful hypothesisthe "grip reflex"to explain how one of its so-called "Finest" could justifiably gun down an unarmed black man he found hiding under a car. Once again, it has sanctioned the notion among some white cops that black blood is cheap.

In July of last year, after a one-day departmental trial, Josefina Martinez, the assistant deputy commissioner of trials, ruled that police officer Jaime Palermo "did negligently and/or carelessly discharge his service firearm," resulting in the 1996 fatal shooting of Steve Excell, a devout Rasta. The punishment, Martinez concluded, fits the crime. Palermo lost 30 vacation days, was "retrained," given his gun back, and, according to one irate law-enforcement source, is "somewhere in the city policing the 'hood." Sharon Excell, the victim's widow, is suing the NYPD and Palermo in a wrongful-death action that once again attempts to hold Palermo and the force behind him responsible. But Martinez has crafted the ultimate excuse for Palermo's deadly behavior. "I realize that [Palermo] was involved in a fast-moving situation and that the period of time between each of his attempts to physically extricate the suspect was less than a few seconds," she wrote. "I am likewise cognizant of the ease with which one can evaluate the facts of an event after it has unfolded and I recognize that [Palermo], in the heat of the moment, did not have this luxury."

Sharon Excell did not have the luxury of explaining the situation to the eight officers who were summoned to her home in Jamaica, Queens, in the early morning hours of June 19, 1996. According to Martinez's summary of the trial, the cops, including Palermo, found Sharon hysterical and screaming. She told Sergeant Timothy Curley of the 103rd Precinct that she "had been beaten with an electrical cord" by her husband. She showed the officers "the marks on her back from the beating and told them that her husband would kill her if they left."

Curley and the contingent of cops searched the apartment "room by room" until one officer discovered that Steve Excell had "fled" through a closet staircase leading to the roof. Curley, Palermo, and another cop, Edward Monahan, bolted out the front door where Curley spotted the dreadlocks climbing down a tree and then a fence onto the sidewalk. Excell sprinted along 90th Avenue, heading toward Jamaica Avenue. Palermo led the chase. "By the time they reached Jamaica Avenue, about two blocks away, they had lost sight of the suspect," Martinez wrote. "Curley and Monahan turned left on Jamaica and walked toward a small grocery store. . . . [Palermo] walked into the street and approached a lone car parked near the front of the store." During a deposition last month at the Greenwich Village office of attorney Ron Kuby, who is representing the Excell family, Palermo described in grim detail how he snuffed out Steve Excell's life.

"I saw a white car, like in the middle of the block, and I just walked up to it and, still looking into the doorways of the buildings, I stopped in front of the driver's side door and just stood there," the officer recalled. "As I was looking into the doorways of the buildings, for no apparent reason, I just ended up looking down on the ground and I saw his hair sticking out from under the car. So immediately after that, I mean that split second, right there, I kind of froze and maybe a second or two, that's when I stepped back, withdrew my weapon, pointed it at the direction of where I saw the hair and yelled at him repeatedly, 'Police, let me see your hands! Let me see your hands! Come out from under the car!' I said it at least three times, very loud. He didn't move.

"At that point, with my left hand, I grabbed his hair to try to get him from under the car. I pulled, he pulled back. I pulled him again. I got him out of the car . . . up to his shoulders. He pulled back again the third time; that's when I grabbed him with my right hand. I grabbed his hair and I pulled him back. I had him about halfway out. He pulled back, and that's when I heard a pop. At that point, I dropped him, and I thought he fired a weapon. So I told him, 'Let me see your hands! Let me see your hands!' 'Cause I still couldn't see his hands. I kept yelling at him, 'Let me see your hands! Let me see your hands!' He wouldn't move. So at that time, I holstered my weapon and I straddled him. As he was laying down, face down, I stepped over him and kept telling him [to] put his hand behind his back, and that's when I saw his right hand next to his head, and it had a little bit of blood on his hand. At that point, I thought I shot him in the hand but he still wouldn't move. So at that point, I went over and I moved his head and that's when his hair parted and I saw a hole in the back of his head.

"Right then and there, I knew that my gun went off. Right there. All I can remember is the sergeant and the other officer were standing to my right, they were saying something but I couldn't hear what they were saying and I just couldn't breathe."

At Jaime Palermo's departmental trial, Timothy Curley, Martinez's report noted, testified that as he approached the store, "he did not hear" Palermo say anything from where he was, about 15 feet away on the street side of the car. Then Curley heard a gunshot. "Curley went around the car to find [Palermo] bent over, shaking and pale," Martinez stated. "Curley saw the suspect lying face down, the lower half of his body under the car. He did not see any blood on the suspect's body. The suspect was handcuffed, and [Palermo] was immediately taken to the hospital by another officer. An ambulance arrived for the suspect in two to three minutes."

The department called police officer Lawrence Ursitti, a 19-year veteran and a master firearms instructor. "Ursitti testified that as a general practice, when apprehending a suspect who has hidden, the first thing an officer should do is get behind cover and command the suspect to do something: 'Stop! Come out! Show hands! Turn around!' " Martinez wrote. "As the suspect is complying, the apprehending officer should call for backup. If the suspect refuses to emerge after backup has arrived, and does not present an immediate threat to anyone, the officers should use tools such as pepper spray, dogs, or water cannons to assist in the extrication."

Ursitti, however, said that he knew of "no lesson plan" that instructed cops how to extract a suspect from under a car. That is when he advanced the "grip reflex" theory. "Ursitti stated that based on accidental discharge reports, which he has occasion to review as part of his duties, the most dangerous and accident-prone situations occur when an officer is in close contact with a suspect," Martinez wrote. "In the close-combat course offered by his unit, officers are taught to beware of unholstering their weapon in close-contact situations because pulling on a suspect with the free hand produces a grip reflex in the gun hand to make a fist, creating a danger of accidental discharge. In addition, unholstering a weapon in close proximity to a perpetrator alerts him of the weapon's exact location and increases the likelihood that he will attempt to take it away."

Should an officer, who is not in danger, put his finger on the trigger after drawing his gun?

"Ursitti also stated that he was unaware of any tactical training instruction that an officer should have his or her finger on the trigger when the gun is drawn and the officer is within six feet of a suspect," according to Martinez. "He noted, however, that the propriety of this action is not based merely on distance but on the individual circumstances of each case."

Cross-examined by Mitchell Garber, Palermo's attorney, Ursitti disclosed that his only preparation for testimony consisted of speaking with the department advocate, the firearms-range instructor who testified before the grand jury, and reading a report about the incident, which, according to Martinez, "he found to be vague." Ursitti also never talked to Palermo or read a transcript of Palermo's official departmental interview. Ursitti cracked. But was he supposed to? Prior to Ursitti's testimony, cops argued among themselves whether Palermo had run afoul of the guidelines.

In a January 1997 report, before an investigation into the shooting could be concluded, Captain Kevin Sheerin, commanding officer of the Queens South inspections unit, offered that Palermo had not violated department guidelines. But one month later, the Patrol Borough Queens South Firearms Discharge Review Board found "that the accidental discharge" indeed was a violation and "recommended additional firearms instructions [and] retraining in tactics on apprehending a perpetrator."

"Ursitti admitted that, when he testified as to procedures for apprehending a suspect, he was speaking to a general hypothetical and not necessarily the specifics of the incident at issue," Martinez wrote. Suddenly, the expert seemed to change his opinion about police procedure gone bad. "Given details of the assault and suspect's flight, Ursitti opined that the pursuing officers were in danger," according to Martinez. "He had not been told prior to his testimony that the fleeing suspect in the incident at issue had ingested marijuana on the night of the incident. He stated that tactics instruction is meant to give guidance rather than mandates because of unforeseen variables in situations."

In her "findings and analysis," Martinez set forth every reason why Jaime Palermo should have been thrown out of the force.

"I am further persuaded by the fact that [Palermo] had several opportunities to call for backup at points in time in which one would expect a reasonable, clear-minded person to do so," she argued. "Even if he initially believed that he could handle the suspect's apprehension alone, the latter's noncompliance to his repeated orders should have related a signal of at least potential difficulties which dictated a call for assistance. Thereafter, with the suspect's resistance to each of [Palermo's] next two attempts to extricate him by pulling his hair, [Palermo] became aware of information that the suspect was not going to go peacefully, which should reasonably have alerted him to the need to call for assistance. I note that this was not a situation in which [Palermo] had no sense of when or how backup would arrive."

Martinez pointed out that Palermo was aware that Sergeant Timothy Curley and Officer Edward Monahan were already nearby. "Simply put, common sense dictates, given the circumstances, that the call for assistance should have been made," Martinez reasoned. "Moreover, [Palermo's] actions placed him, the suspect, and other officers, pedestrians, and passing motorists in harm's way. Not having a view of the suspect's hands, [Palermo] risked the former having shot or stabbed him as he stood close to the vehicle. Second, by holding the gun in such close proximity to the suspect whose hands he still could not see, [Palermo] risked an attempt by the suspect to remove the gun from him. Finally, the motion of pulling a suspect by the hair necessarily requires the making of a fist. In using the hand that is holding your weapon to make this motion, an accidental discharge was foreseeable. I note that [Palermo's] firearm was found to be operable when tested shortly after the incident occurred and that an inspection of the weapon by the Firearms and Tactics Section revealed that no defects were found, all factory installed safeties were in place and working properly, and the weapon was found to meet all Department and factory specifications."

In concluding her recommendation that Palermo not be fired, Martinez contended that "his testimonial demeanor demonstrated that he is genuinely remorseful and places value on human life," adding that since the shooting Palermo had "done a better than average job." But could the public ever again trust Palermo with a gun?

"Although some penalty is appropriate to apprise [Palermo] of the importance of following the dictates of the Department's tactical training, I have no basis on which to conclude that [Palermo] is no longer qualified to carry out the duties of a police officer," Martinez ruled. "I have considered the possibility of placing [Palermo] on dismissal probation. However, given the fact that he continued to carry out patrol duties while remaining on full-duty status in the nearly four years since this incident occurred, such a penalty would serve no realistic purpose."

On August 18 of last year, then police commissioner Howard Safir, who was under fire for failing to corral trigger-happy cops, rubber-stamped Martinez's recommendation.